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In Part 1 of this series on DMCA takedown notices, we discussed what a DMCA takedown notice is and what you need to include for it to be valid. In this article, we’ll go over the process for what you can do if you wrongly receive a notice.

The most common response to a DMCA takedown notice is to send what is known as a counter-notice. Much like the takedown notice, you must follow a specific set of instructions for your counter-notice to be effective. The requirements are as follows.
1. The counter-notice must be in writing.
2. You must identify the copyrighted material you were accused of infringing that was blocked by your ISP.
3. You must specify where the material was previously found.
4. A statement, under penalty of perjury, explaining you have a good faith belief the material was removed as a result of mistake or misidentification.
5. A statement that, if the dispute comes to a copyright suit, you consent to the jurisdiction of the Federal District Court for your district.
6. Your contact information.
7. It must be signed by you.
When the counter-notice is complete, you must send it to the issuing service provider who will then forward it to the copyright holder or her agent.

Now, the counter-notice is a great device, but whether it is effective in the end really comes down to whether you, as the alleged infringer, had the right to be using the copyrighted work in the first place. And that’s a discussion that comes down to whether your use of the material constituted fair use or not. Now, fair use is an incredibly sticky area that could easily be discussed in a week’s (or even a month’s) worth of posts, so I’ll try to sum it up as concisely as I can here. Fair use is essentially the use of a copyrighted work in a certain way, such as for parody or instructional purposes, where the alleged infringer is not liable for infringement because of the certain circumstances of how the work is being used in that particular case. This is an incredibly fact-intensive analysis requiring the consideration of several factors, and you should discuss any type of fair use with a copyright attorney before you jump to the conclusion you are fairly using a copyrighted work.

Now the counter-notice is a great first step to dealing with a DMCA takedown notice that shouldn’t apply to you, but what if you get a takedown notice that is completely fraudulent on its face. Well, you have an option. The DMCA allows for claims against the copyright holder or her agent who issued the takedown notice if the issuer knowingly materially misrepresented the facts specified in the takedown notice. While it is true that’s a very high bar to overcome, if you are faced with a copyright holder who has absolutely no justification to send you a takedown notice, it may be in your best interest to contact a copyright lawyer to see if you have a case. After all, the DMCA provides for damages and attorney fees if you win.

The DMCA Takedown Notice is one of those seemingly mythical devices copyright holders use to help stymie the spread of their works over the internet. A lot of people don’t understand exactly what they are or how they’re used—but that’s what we’re here for.

Where Do These Things Come From?

DMCA takedown notices emerged from the Digital Millennium Copyright Act (hence the DMCA part of their name). Essentially, they were designed to provide a kind of safe harbor for internet service providers (ISPs) when people were using their networks to share copyrighted information. A copyright holder can send an ISP a DMCA takedown notice informing them of the infringing activity being conducted through their network, the ISP disavows any knowledge of infringement but forwards the notice on to the actual infringer. If everyone is lucky, the infringer stops sharing the files, the ISP doesn’t get sued, the infringer doesn’t get sued, and the copyright holder can go about her business. It doesn’t always work as smoothly as that, however, and DMCA takedown notices given to non-American infringers almost always get tossed right into the trash.

What Gets Included In A DMCA Takedown Notice?

There’s been a lot of misconception lately about what you need to include in a written DMCA takedown notice and, particularly, how much these notices cost. You need the following items:
1. Signature of the copyright holder or her agent.
2. An identification of the copyrighted work or works that are being infringed.
3. An identification of the material that is infringing the work or the infringing activity you wish to stop.
4. Information that is sufficient enough to allow the ISP to locate the infringing material or activity.
5. The copyright holder’s (or her agent’s) contact information.
6. A statement explaining the copyright holder did not authorize the infringing material or activity.
7. A statement, under penalty of perjury, explaining the information in the DMCA takedown notice is accurate and the copyright holder (or her agent) is authorized to act to stop the infringement.
And that’s really all there is to it. Once the takedown notice is finished, all that’s left is to send it off to the service provider.

Can I Send A DMCA Takedown Notice Myself?

Of course. That’s part of the beauty of the DMCA, is allowing copyright holders and their agents the right to act without having to hire an attorney. Of course, improperly formatted DMCA takedown notices are almost always discarded immediately, so you want to make sure you draft one properly. And to that effect, you may want to consider hiring a copyright attorney. However, if you read the statute, 17 USC § 512, and feel you have a good grasp of what you need for a proper notice, then by all means, draft away.

How do I protect myself (and by business) from a copyright claim? This is a question you should be asking yourself if you have any internet presence. Whether it is something as significant as a full-featured web application, a simple blog, or even just a Twitter, Facebook, or LinkedIn account, you need to make sure you’re not accidentally (or intentionally) stealing someone else’s copyrighted work. Here’s a quick primer to keep you out of trouble.

Don’t copy another person’s work. Simple as that, right?

Well there’s actually a lot more to it. Copyright law in the United States is governed by Title 17 of the United States Code. The law protects all types of creative works, ranging from the written word, to drawings and photographs, to videos, and of course the often publicized sound recordings. On a very basic level, a copyright gives the author the right to modify, distribute, and perform their work however they choose. Of course, the author can also license her work to others, and can sell her work to whoever she wants. And she can send out cease and desist letters to, or sue, people who infringe on her copyright.

And that brings us to the three main areas you’re most likely to get in trouble with copyright law on the internet:

Written Content, Blog Posts, Articles

Here’s an easy pit to fall into. You find a blog post you really like that would fit absolutely perfectly with your blog’s theme. So you say, whatever, the post is really old, the original author probably isn’t getting too much traffic to it anymore, I’ll just copy it on my blog. No harm done, right?

Congratulations, you’ve just plagiarized the original author’s content and violated their copyright. Feel free to take the general idea of their post, but make sure you put it into your own words—that’s the easiest way to protect yourself from a copyright claim for stealing another’s written work.

Art, Photography, Videos, and Music

We have a very similar situation to the above. You see a picture you really like on Flickr, DeviantArt or some other image site. You like it so much, you feel it needs a new home on your own website. So you download it from the image hosting site, never bothering to read the license agreement, and upload it to your own site. The photographer sues you for infringing on his copyright, and you wonder why.

If you find a photo you want to use on your site, just contact the photographer and ask them if you can use it on your own site. The same simple technique goes for art, videos, and music (though be careful with videos and music, as there may be a number of parties who actuallyown the copyright). As long as the art isn’t for sale somewhere like a stock photo site, most artists will gladly let you post their picture so long as you give them a link back to their site. And if they don’t, find another artist who will let you use their picture instead.

HTML, CSS, JavaScript, and Other Code

There’s been some debate over the years about whether web design code is copyrighted. The general consensus is yes, the scripts, codes, and other programming that goes into designing and developing a website are protected by copyright law—although the general look of the website (two column layout like our site, for example) is not.

So how do you get around a claim of copyright infringement even though you see a website you really like and you want to incorporate some of those design elements into your own site? Use their site as inspiration, but don’t copy directly from the CSS or HTML files when incorporating similar elements into your own site. Sure, you can view those files to figure out the general way the developer accomplished her task, but stay on the safe side and don’t copy her code.

Above all else, if you are unsure about whether something is copyrighted, play it safe and assume it is. And if you do find yourself embroiled in a copyright infringement suit, you would like to register a copyright for your own work, or you are concerned about whether something is copyrighted or not, contact a copyright attorney.

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